End Impunity for Electoral Offenses by Prosecuting Perpetrators
(Abuja) - The National Assembly should pass legislation establishing a special Electoral Offences Commission to investigate and prosecute election-related abuses, including violence, Human Rights Watch and the Nigerian Bar Association said today. Nigerian authorities should also set a clear precedent for accountability ahead of elections, planned for April 2011, by prosecuting under current law the perpetrators of recent abuses.
Nigeria has a history of violent and deeply flawed elections. At least 300 people were killed in violence linked to the last general elections in 2007, according to Human Rights Watch. Corrupt politicians, in many cases backed by mafia-like "godfathers," openly mobilized gangs of thugs to terrorize ordinary citizens and political opponents and to stuff or steal ballot boxes. The police were often present during such incidents but frequently turned a blind eye or, at times, participated in abuses. The police have the sole power to investigate these crimes, yet no one has been held accountable.
"It's time for Nigeria to break with the past and to ensure that violence, intimidation, and fraud don't undermine the credibility of the upcoming elections," said Dafe Akpedeye, Senior Advocate of Nigeria, and chairman of the Election Working Group of the Nigerian Bar Association. "Setting up a properly resourced Electoral Offences Commission under strong leadership will send a clear signal to candidates and political parties that people may be held accountable for any election-related abuses."
Nigerians will go to the polls on April 2 to elect National Assembly members, on April 9 to choose a president, and on April 16 to elect state governors and state assembly representatives.
Since November 2010, more than 50 people have been killed in violence linked to political party primaries and election campaigns. The level of violence is expected to increase in the days leading up to and during the elections based on experience during previous elections.
Challenges of the Current System
Despite the rampant violence and fraud that have characterized Nigeria's elections, state institutions responsible for investigating and prosecuting such crimes have largely abdicated their role and, in some cases, have even been complicit in the crimes. The Electoral Reform Committee, established by the late president, Umaru Yar'Adua, following the 2007 elections, found that not a single Nigerian had been convicted and punished for electoral offenses since the country's independence in 1960.
Under the current system, the Nigeria Police Force, federal and state prosecutors, and the Independent National Electoral Commission (INEC), established in 1998, all have authority to prosecute electoral offenses. Only the police have the power to investigate such abuses. Yet the police lack the political will and independence to carry out investigations of election-related offenses, Human Rights Watch and the Nigerian Bar Association said.
Human Rights Watch has extensively documented extortion, embezzlement, and abuse of office by members of the police force in the course of their daily operations. Individual police officers have also been implicated in election-related criminal activity, including violence and thuggery on behalf of corrupt politicians. Human Rights Watch found that during the 2007 elections the police leadership consistently refused to investigate incidents of political violence orchestrated by influential politicians or senior members of the ruling People's Democratic Party (PDP).
"Normally crimes should be investigated by the police," said Corinne Dufka, senior West Africa researcher at Human Rights Watch. "But the police in Nigeria have shown themselves incapable of effectively investigating election-related crimes, with not one conviction in 50 years."
In the few cases in which the police have conducted investigations into electoral offenses, the police and federal and state prosecutors have failed to follow through with criminal prosecutions.
Until recently, the electoral commission has also been largely ineffective in holding perpetrators accountable for electoral offenses. There were numerous reports that commission officials participated in vote-rigging during the 2007 elections.
In June 2010, President Goodluck Jonathan appointed an academic, Attahiru Jega, to head the institution. Jega has embarked on a program to reform the electoral process. In January, the commission launched a voter registration campaign using biometric technology and created a new voters' register aimed at removing thousands of false names and duplicate entries that many claimed had been used to rig previous elections. Jega also pledged to investigate and prosecute those implicated in electoral offenses since he took office.
In October, the commission filed criminal charges against three people who had been found with 82 voter registration cards during a re-run for a state legislature seat in Anambra State in September. The commission is also prosecuting two men accused of stealing ballot boxes at gunpoint during a state assembly by-election in Lagos State in December.
So far this year, the commission has initiated criminal proceedings against at least 30 other people for voter registration offenses. A handful of them have been convicted and fined, but these cases have barely scratched the surface. The commission identified more than 870,000 instances of multiple registration on the new voters' register that have yet to be addressed.
"Prosecuting electoral offenders is sending an important message to Nigeria's politicians that the upcoming elections will not be business as usual," Akpedeye said. "However, INEC's main job is ensuring credible and peaceful elections. We need an independent body that has a clear mandate, with investigative powers, and that can act quickly and effectively to prosecute election-related offenses."
The Case for an Electoral Offences Commission
Despite the promising steps in recent months, the electoral commission does not have the resources or capacity to prosecute all electoral offenses. To address this problem, Jega wrote to the National Assembly in late 2010 and urged legislators to pass the Electoral Offences Commission Bill, which had been stalled in the National Assembly for nearly two years.
The proposed commission would have the principal responsibility for investigating and prosecuting electoral offenses under the Electoral Act, including incitement, the use or threat of violence, bribery of voters or election officials, theft of ballot materials, and falsification of election results. It would have investigative powers to summon individuals for questioning, to request documentation and other evidence, and to search premises where reasonable cause exists.
The police force and federal and state prosecutors would continue to have authority to prosecute election-related abuses. But the proposed commission would have greater independence to handle politically sensitive investigations and prosecutions, and with no role in overseeing elections, it would also have fewer conflicts of interest. The National Assembly should protect the independence of a new Electoral Offences Commission by ensuring that appointment and removal of the chairperson would require two-thirds approval by the Senate.
Establishment of an Electoral Offences Commission was part of broader reforms recommended by the presidential Electoral Reform Committee in December 2008. President Yar'Adua presented the Electoral Offences Commission Bill to the National Assembly in April 2009, along with six other electoral reform bills. The National Assembly amended the Electoral Act in August 2010 to include some of the presidential committee's recommendations and has since adopted other amendments. But it has not passed the Electoral Offences Commission Bill.
"The National Assembly should use the last few weeks before elections in April to end the history of electoral impunity and to create an independent Electoral Offences Commission," Dufka said. "Failure to do so would risk further entrenching violence and corruption in the electoral process and continue the disenfranchisement of Nigerian citizens."
Between independence in 1960 and 1999, Nigeria produced only two elected governments - both were overthrown in military coups. Nigeria's military ruled the country for nearly 30 of its first 40 years of independence. However, in 1999, Nigeria made a transition to civilian rule. The 1999 elections, which brought a retired general, Olusegun Obasanjo, to power, were blighted by such widespread fraud that observers from the Carter Center concluded that "it is not possible for us to make an accurate judgment about the outcome of the presidential election."
Federal and state elections in 2003 were again marred by fraud as well as serious incidents of violence that left at least 100 people dead and many others injured. Human Rights Watch found that members and supporters of the ruling PDP were responsible for the majority of abuses, though opposition parties also engaged in political violence. Most deaths occurred when opposing bands of armed thugs fought each other in an effort to control an area and displace supporters of the opposing party.
Human Rights Watch documented how ruling party politicians in the oil-rich Niger Delta mobilized and funded armed groups to help rig elections. That led to a sustained increase in violence and criminality in the region. In some locations elections simply did not take place, yet the electoral commission reported PDP victories with high voter turnout.
Despite the abysmal record of the 1999 and 2003 elections, the government did not correct the problems. Observers from the European Union described the 2007 elections, which brought Yar'Adua to power, as among the worst they had witnessed anywhere in the world. At least 300 people were killed, and many others injured, in violence linked to the elections. Many of the results led to court challenges.
In December 2008, the Supreme Court narrowly upheld Yar'Adua's election, although courts overturned 12 of the PDP's 28 gubernatorial victories from 2007 on the grounds of electoral malpractices or other irregularities. Following Yar'Adua's death from natural causes in May 2010, Jonathan, his vice president, was sworn in as president.